Clark v. Huber

Citations

• 20 Cal. 196

Syllabus

<p>A tenant in common, although he may as against a stranger recover in ejectment the entire premises, cannot in such action recover the whole of the mesne ■ profits or damages for the detention, but only a proportionable part corresponding to his interest. „ '</p> <p>Where in an action of ejectment, tried by the Court without a jury, a judgment was rendered in accordance with the allegations of the complaint and the finding of facts by the Court for the possession of the premises, and for double the amount of damages to which the evidence showed that the plaintiff was entitled, and for this error a new trial was, on motion of defendant, ordered, from which order the plaintiff appealed, assigning as error that the Court below should, instead of granting a new trial, have allowed plaintiff to remit the excessive damage: Held, that this Court would not reverse the order; that, although the Court below might have ordered the judgment to stand on remission of the excessive damage, yet its action was a pure matter of discretion, which this Court will not review upon appeal.</p> <p>Where there is a discrepancy between the finding of facts and the judgment, this Court may, on appeal, order the proper modification of the judgment; but where the judgment is in harmony with the pleadings and the finding of facts, and is erroneous by reason of a variance between the finding and the proof, this Court will not modify the judgment to suit the proof.</p>